Coy Mathis, born a male, has identified as a female since the age of 18 months. Now at six-years old she must confront issues that far exceed the normal trials and tribulations of the first grade classroom. Coy has dressed in girls’ clothing and presented herself as a female since being enrolled in Eagle Elementary School. Her classmates and teachers refer to her as a female, however, as of December, Coy is no longer allowed to use the girls’ restroom but is required to use the boys’ bathroom or the nurse’s bathroom. Coy’s parents disagree with the school’s determination and want their daughter to be exposed to the same educational opportunities as other students without being mistreated. Coys’s parents, with the help of the Transgender Legal and Defense Education Fund (“TLDEF”), have filed a complaint on Coy’s behalf with the Colorado Civil Rights Division alleging violations of the child’s rights.

In order to draw attention to the matter and publicize the issues faced by their daughter, Coy’s parents have sought national and local media attention. A letter from the school to TLDEF expresses the district’s belief that their decision was necessary to address “other students in the building, their parents, and the future impact a boy with male genitals using a girls’ bathroom would have as Coy grew older” fearing that an uncomfortable learning environment would arise as the students matured. Conversely, Coy’s parents are concerned that the policy set forth by the school will only serve to subject Coy to bullying and harassment in the future.

Although some schools have enacted detailed policies to meet the needs of transgendered students others have failed to properly implement changes that effectively address transgender issues. Much of the case law thus far has focused on challenges to dress code requirements. For instance, in Doe v. Yunits, 2000 WL 33162199 (Mass. Super. Oct. 11, 2000), a fifteen-year old transgender student was prohibited from wearing female attire and was barred from attending school unless she abided by the administration’s demand that she wear male clothing. In response to her school’s position Doe filed a claim asserting that her “Gender Identity Disorder” qualified as a disability and therefore, the school was discriminating against her on that basis. Doe also argued that the school prohibiting a student, who was recognized as a male at birth, from wearing clothing that would otherwise be unobjectionable if worn by a female student, amounted to sex discrimination. Additionally, Doe argued that the school’s requirement unconstitutionally infringed upon her freedom of expression because selecting her attire was a reflection of her identity. Ultimately, a Massachusetts district court held that the school’s policy unfairly discriminated against Doe as she was treated disproportionately compared to other female students wearing the same attire. However, the court noted that Doe’s disability claim was invalid as it does not fall under the umbrella of the Americans with Disabilities Act. Doe dropped her freedom of expression claim and therefore the Court did not reach the merits of that argument.

In Youngblood v. School Bd. of Hillsborough Cnty, Case No. 8:02-CV-1089-T-24MAP, (M.D. Fla. Sept. 25, 2002), a transgendered student preferring to dress in men’s clothing had been barred from taking her yearbook photo unless she ascribed to the school’s dress-code policy. The school required that female student’s wear a scoopneck drape while male students had to wear a white shirt, tie, and dark jacket. Unfortunately, as a result of the school’s requirement, Youngblood was unable to take her senior portrait and was consequently excluded from the yearbook. Youngblood filed suit claiming that the school district infringed on her freedom of expression and discriminated against her on the basis of her sex. The Court dismissed Youngblood’s discrimination claim finding that the argument set forth by Youngblood could be cured if the school simply permitted female students to wear less feminine attire. Youngblood’s freedom of expression claim was also dismissed but ultimately, the administration agreed that female students would no longer be required to wear the drape for senior portraits.

Transgender youth are often subject to a school day characterized by harassment and discrimination. In response several states have passed laws barring such discrimination in public schools. Title IX of the Education Amendments Act of 1972 may also serve as a means of recourse for transgendered students as the statute prohibits harassment based on gender identity in educational programs that are awarded federal funds. In order to better address the needs of transgendered students, schools would be well served to develop a detailed policy that adequately addresses issues often faced by transgendered youth.

A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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